Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 37
P904/13	OPINION OF LORD BANNATYNE in the cause ABO NDOW (AP) Petitioner; against The Secretary of State for the Home Department Respondent: ________________

Petitioner: Caskie; Drummond Miller LLP

Respondent: McIlvride; Office of the Advocate General

25 February 2014

Introduction
[1] This judicial review in which the petitioner sought declarator that a decision of the Secretary of State for the Home Department ("the respondent") was unlawful came before me for a first hearing on 19 December 2013 and a continued first hearing on 23 January 2014. The petitioner was represented by Mr Caskie, advocate and the respondent by Mr McIlvride, advocate.

Background
[2] The petitioner is a citizen of Gambia. The circumstances and date of his entry into the United Kingdom were not established.

[3] The petitioner has a poor immigration history: he has repeatedly failed to comply with the reporting restrictions imposed upon him; he has failed to leave the United Kingdom when required to do so; and he has professed to be a different person of a different nationality. If, granted a visa which entitled him to enter the United Kingdom, he has overstayed the period for which the visa was granted.

History of absconding
[4] On 23 October 2003 the petitioner was first encountered by the immigration authorities when he was arrested by the police and charged with intent to supply controlled drugs. He was served with a notice of liability to be removed from the United Kingdom. He was liberated on bail on 10 November 2003 subject to inter alia reporting restrictions. The petitioner failed to comply with the reporting restrictions and on 3 September 2004 was deemed to have absconded. At a bail forfeiture hearing on 4 April 2005, monetary bail of £1,000 which had been provided by a third party on the petitioner's behalf was forfeited to the Crown. On 23 August 2009 the petitioner was remanded in custody but was liberated on 8 September 2009 subject to inter alia reporting restrictions. He failed to comply with the reporting restrictions from 10 December 2009. On 18 April 2010 the petitioner was arrested and was remanded in custody. On 30 April 2010 he was released on bail subject to inter alia reporting restrictions. He failed to comply with the reporting restrictions after 9 June 2010. The petitioner was subsequently arrested and was charged with being concerned in the supply of a controlled drug. He was convicted of that offence on 24 December 2010 and was sentenced to a period of imprisonment of 12 months. On 9 May 2011, when the petitioner would otherwise have been eligible for release from custody, he was detained for the purpose of removing him from the United Kingdom. On 1 June 2012, the petitioner was granted bail by an immigration judge on condition inter alia that he report daily to St Leonards Police Station. On 7 June 2012, only six days after being granted bail on that condition, the petitioner ceased complying with the reporting condition. He was detained once more, for the purpose of removing him from the United Kingdom, on 7 October 2012.

Criminal conviction history
[5] The petitioner has the following previous convictions: on 22 January 2003 he was convicted of the offence of failure to surrender to custody at the appointed time. On 19 January 2006 he was convicted of driving whilst under the influence of alcohol together with two further road traffic offences. On 11 May 2006 he was convicted of driving whilst disqualified and a further road traffic offence, and was convicted of attempting to defeat the ends of justice. On 17 January 2008 the petitioner was convicted of assault to injury and of carrying a knife. On 24 January 2008 the petitioner was convicted of assault and assault to injury. He received a sentence of imprisonment of a period of 9 months. On 9 April 2008 he was convicted of a breach of the peace. On 20 May 2009 the petitioner was convicted of two charges of possessing counterfeit money. On 15 July 2010 the petitioner was convicted of failing to attend a court hearing. On 24 December 2010 he was convicted as above referred to.

[6] Following the last referred to conviction, the respondent decided to deport the petitioner. The petitioner's challenges to the respondent's decision to deport have been exhausted.

[7] The reason the petitioner has not been deported is because of difficulties the respondent has had in obtaining a travel document to remove the petitioner to the country of which he is a national, namely Gambia.

[8] The respondent commenced attempts to obtain a travel document known as an "ETD" on 9 January 2009 by submitting a travel document application to the Gambian authorities. On 19 January 2011 the petitioner was interviewed in conjunction with the Gambian High Commission who stated that they believed he was a Gambian citizen. On 9 May 2011 the petitioner completed his custodial sentence and was taken into detention by the Secretary of State.

[9] On 18 January 2011 the petitioner was interviewed by Gambian authorities by telephone. A further travel document application to the Gambian authorities was made on 4 January 2012. The petitioner had a further telephone interview with the Gambian authorities on 16 May 2012.

[10] As above set out, the petitioner was granted bail by an immigration judge on 1 June 2012 and required to sign daily at a police station. By that time he had been detained by the respondent for 13 months. He failed to sign on as required and, as above set out, was arrested on 7 October 2012 and again was detained by the respondent. By the date of the continued first hearing in this judicial review, the petitioner had been detained for a total period of 863 days.

[11] On 5 February 2013 the petitioner had a face-to-face interview with the Gambian authorities but on 4 July 2013 the Gambian authorities refused to issue a travel document for the petitioner. The petitioner was again interviewed by the Gambian authorities on 22 October 2013 and certain further information regarding his family was presented to the official at the High Commission by persons acting on behalf of the respondent. The Gambian authorities again refused to grant an ETD. The petitioner is presently awaiting the reasons for that refusal to be given by the Gambian authorities. The official within the Gambian High Commission who has been dealing with this matter will not be available until the end of January 2014.

The legal framework
[12] Where a deportation order is enforced against any person he may be detained by the respondent under powers conferred by Schedule 3 to the Immigration Act 1971, as amended. This statute places no express limitations upon the exercise of these powers but it was common ground between the parties that in R v Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704, Woolf J, as he then was, held that exercise of the powers to detain with a view to facilitating deportation is subject to certain implied limitations. These have become known as the Hardial Singh principles. These principles were considered by Dyson LJ in R (I) v Secretary of State for the Home Department [2003] INLR 196 at paragraph 46 and he set these out as four propositions as follows:

"(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal."

These principles were approved by the Scottish Courts in Mbulawa v The Advocate General for Scotland [2011] CSIH 53 in the opinion of the court at paragraphs 5 to 12.

[13] My attention was also drawn to article 5 of the European Convention on Human Rights ("ECHR"), however, it was accepted by both parties that there was no difference between the domestic law and the law in terms of ECHR and that accordingly in considering the questions before the court the appropriate law was as enunciated in terms of the Hardial Singh principles.

[14] Lastly, it was common ground between the parties that the onus was upon the respondent to establish that the petitioner's detention was lawful.

The submissions on behalf of the petitioner
[15] Mr Caskie commenced his submission by drawing to the court's attention the length of time for which the petitioner had been detained, namely 863 days. He then set out three propositions:

1. His primary position was this: in all the circumstances the reasonable period of detention had elapsed in that there was an apparently insurmountable barrier to the petitioner's removal.

2. His secondary position was this: if the reasonable time for detaining the petitioner had not passed, then it had become apparent that the petitioner's removal would not be effected during the reasonable period because of the insurmountable barrier to his removal.

3. Moreover, the respondent had failed to act with reasonable diligence in seeking to remove the petitioner.

[16] Mr Caskie then directed my attention to the observations of Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at paragraphs 107, 108, 123 and 127:

"107 I have some difficulty in understanding why the risk of reoffending is a relevant factor in a case where there is a risk of absconding, but not otherwise. It seems to me that it is possible to construe the power to detain either (more narrowly) as a power which may only be exercised to further the object of facilitating a deportation, or (more broadly) as a power which may also be exercised to further the object which it is sought to achieve by a deportation, namely, in the present case, that of removing an offender whose presence is not conducive to the public good. The distinction between these two objects was clearly drawn by the Court of Appeal in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804. Toulson LJ said, at para 55:

'A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.'

Para 78 of Keene LJ's judgment is to similar effect.

108 I acknowledge that the principle that statutory powers should be interpreted in a way which is least restrictive of liberty if that is possible would tend to support the narrower interpretation. But I think that that Court of Appeal was right in A's case to adopt the interpretation which gives effect to the purpose underlying the power to deport and which the power to detain is intended to facilitate. Perhaps a similar way of reaching the same conclusion is to say, as Simon Brown LJ said in I's case at para 29, that the period which is reasonable will depend on the circumstances of the particular case and the likelihood or otherwise of the detainee reoffending is 'an obviously relevant circumstance'.

...

123 It is common ground that a refusal to return voluntarily is relevant to an assessment of what is a reasonable period of detention if a risk of absconding can properly be inferred from the refusal. But I would warn against the danger of drawing an inference of risk of absconding in every case. It is always necessary to have regard to the history and particular circumstances of the detained person. What is, however, in issue is whether a failure to return voluntarily can of itself justify a period of detention which would otherwise be unreasonable and therefore unlawful. In I's case [2003] INLR 196, paras 50-54, I said in the Court of Appeal:

'50. As regards the significance of the appellant's refusal of voluntary repatriation, there appears to be agreement between Simon Brown LJ and Mummery LJ that this is a relevant circumstance, but Mummery LJ considers that it is decisively adverse to the appellant, whereas Simon Brown LJ considers that it is of relatively limited relevance on the facts of the present case. I too consider that it is a relevant circumstance, but in my judgment it is of little weight. [Counsel for the Secretary of State] submits that a refusal to leave voluntarily is relevant for two reasons. First, the detained person has control over the fact of his detention: if he decided to leave voluntarily, he would not be detained. Secondly, the refusal indicates that he would abscond if released from detention. It is this second feature which has weighed heavily with Mummery LJ.

'51. I cannot accept that the first of [the Secretary of State's] reasons is relevant. Of course, if the appellant were to leave voluntarily, he would cease to be detained. But in my judgment, the mere fact (without more) that a detained person refuses the offer of voluntary repatriation cannot make reasonable a period of detention which would otherwise be unreasonable. If [the Secretary of State] were right, the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation.

'52. I turn to [the Secretary of State's] second reason. I accept that if it is right to infer from the refusal of an offer of voluntary repatriation that a detained person is likely to abscond when released from detention, then the refusal of voluntary repatriation is relevant to the reasonableness of the duration of a detention. In that event, the refusal of voluntary repatriation is no more than evidence of a relevant circumstance namely the likelihood that the detained person will abscond if released.

'53. But there are two important points to be made. First, the relevance of the likelihood of absconding, if proved, should not be overstated. Carried to its logical conclusion, it could become a trump card that carried the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the length of the period of detention. That would be a wholly unacceptable outcome where human liberty is at stake.

'54. Secondly, it is for the Secretary of State to satisfy the court that it is right to infer from the refusal by a detained person of an offer of voluntary repatriation that, if released, he will abscond. There will no doubt be many cases where the court will be persuaded to draw such an inference. I am not, however, satisfied that this is such a case. It is not at all surprising that this appellant has refused voluntary repatriation. He has not yet exhausted the asylum process which, if successful, would permit him to remain in the United Kingdom. In these circumstances, why should one infer from the refusal of voluntary repatriation that, if released, he would abscond? In my judgment, the most that can be said is that there is a risk that if he is released the appellant will abscond. But that can be said of most cases. I do not consider that the fact that he has refused the offer of voluntary repatriation adds materially to the evidence that such risk is present in the instance case.'

...

127 It is necessary to distinguish between cases where return to the country of origin is possible and those where it is not. Where return is not possible for reasons which are extraneous to the person detained, the fact that he is not willing to return voluntarily cannot be held against him since his refusal has no causal effect. But what if return would be possible, but the detained person is not willing to go? Here it is necessary to consider whether the detained person has issued proceedings challenging his deportation. If he has done so, then it is entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings (unless the proceedings are an abuse). In those circumstances his refusal to accept an offer of voluntary return is irrelevant. The purpose of voluntary return is not to encourage foreign nationals to return to their countries of origin where, if their legal challenges succeed, it is likely to have been demonstrated that they would face a risk of persecution within the meaning of the Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906) or treatment contrary to article 3 of the ECHR. Rather, it is to facilitate removal here that is justified because the FNPs have not proved that they would face the relevant risk on return. In accepting voluntary return, the individual forfeits all legal rights to remain in the United Kingdom. He should not be penalised for seeking to vindicate his ECHR or Refugee Convention rights and be faced with the choice of abandoning those rights or facing a longer detention than he would face if he had not been offered a voluntary return."

[17] Mr Caskie took from these observations that in considering the length of the period of detention which is reasonable it is proper to have regard to three factors:

1. The risk of the detained person absconding;

2. The risk of the detained person reoffending if released; and

3. Non-cooperation on the part of the detained person in his removal, if he no longer has any right to challenge his deportation, as is the case here.

Mr Caskie conceded that the petitioner's history of absconding and offending was a poor one. He went as far as to say that it was clear from a consideration of the papers that the conclusion of the respondent that the petitioner presented a very high risk of absconding and reoffending was a reasonable one and might in fact be the correct one. Nevertheless, his position was that even with the risk of absconding and the risk of reoffending unless the respondent was able to effect removal the detention was unlawful. His position was that despite all of the difficulties which this petitioner presented the point had come at which his detention was unreasonable. His secondary position was that if the reasonable period had not already elapsed then it could clearly be seen that removal would not take place within a reasonable period. It was his contention that the relevant statutory purpose for the detention as defined by Lord Dyson in Lumba no longer existed and therefore the power to detain had fallen away. He submitted that, looking to the papers before the court and the whole background to the case, there was no real possibility of the petitioner's return to Gambia and if there was not such a prospect then his continued detention was unlawful.

[18] Mr Caskie then turned to the productions which he submitted supported his assertion that there was no real possibility of the petitioner ever being returned to Gambia.

[19] In particular, Mr Caskie drew the court's attention to three Detention Review Reports, prepared on behalf of the respondent, dated September, November and December 2013. Throughout the period of his detention, the petitioner had regularly been the subject of Detention Reviews. At the time of each review the legality of the petitioner's continued detention was considered by the respondent. The three Detention Review Reports produced were the three most recent reviews of the petitioner's detention. On each of these occasions the respondent had concluded that the petitioner's detention was lawful.

[20] He commenced his review of the above Reports by referring to the following in the September Report:

"On 19 January 2011, subject was interviewed in conjunction with Gambian High Commission who confirmed he was a Gambian national."

He submitted that, despite the above, three years later the necessary ETD to allow the petitioner to go to Gambia had not been obtained. He submitted that this, of itself, clearly showed that it would be well-nigh impossible to obtain the necessary travel document to enable the petitioner to go to Gambia. If the respondent had failed, after such a finding, within a period of three years to obtain the necessary travel document, the petitioner would not be going to Gambia.

[21] He then pointed to the following section of the September Report at page 7:

"The subject attended a face-to-face interview at the Gambian High Commission on 5 February 2013. An officer from the Home Office was in attendance and advised that the subject had been fully compliant and had stated he wanted to go back to Gambia. The case was put on the CROS priority list."

He submitted that where the petitioner, despite the foregoing, had not been removed, approximately a year later, this again supported his contention that it was well‑nigh impossible for the petitioner to be returned to Gambia.

[22] He next referred to page 8 of the said Report and to the following passage:

"On 4^th July 2013 I sent an email to the CROS Africa 1 team to ask for a progress update on the ETD. A reply was received on the 4^th July 2013 to state the ETD was refused. The Gambian HC advised CROS that the face-to-face interview conducted on 5^th February 2013 was unsuccessful - during the interview the subject claimed to be non-Gambian and stated that he travelled to the UK from Sierra Leone with his aunt. He also indicated that his father was currently residing in Ghana. A note was placed on CID on 4 July 2013 stating the Gambian HC refused the ETD as 'the mission cannot confirm whether this passport has ever been issued to the subject as these passports not valid.' On 25^th July 2013 I sent an email to the CROS Africa 1 team, to ask whether the subject presented a passport at the Gambian High Commission. They looked into at and replied on 2^nd August 2013 advising that the subject did not present a passport and the ETD was refused as his nationality was not proven."

He observed that there was a material difference between what the Home Office was saying on the previous page and what was said by the Gambian High Commission. He advised that it was the petitioner's position that he had fully co-operated and had not sought to present himself in the way stated by the Gambian High Commission. However, he submitted that even if the petitioner had not been co-operative, this passage further supported the unlikelihood of the respondent obtaining an ETD to send the petitioner to Gambia. He submitted that even if uncooperative he had now been held too long.

[23] Mr Caskie then turned to highlight the following at page 9 in the September Report in a section headed "Actions taking to progress case etc":

"I contacted CSIT and was advised that, rather than arrange language analysis, I should try to obtain further details about the subject's sister and any family the subject may have in Gambia. This would give us reason to go back to the Gambian Embassy, as they were not told the first time round that the subject had a sister. I also discussed a Nexus referral with SCW but was advised that the Nexus team only operates in London at present."

Counsel then contrasted that passage with the same section in the November Report which said the following:

"The case has been put on the ETD priority list. A substantive JR hearing has been set for 19^th December 2013."

Counsel highlighted what he contended was the lack of action that there had been between September and November. He submitted that the substantial differences between the respondent's plans and actions breached the fourth Hardial Singh principle.

[24] Mr Caskie went on to highlight that the official present at the petitioner's interview with the Gambian High Commission in February 2013 was unable to speak the language in which the interview was conducted. He submitted that this also breached the fourth Hardial Singh principle in that the question of his co-operation or otherwise at the interview could not be independently assessed.

[25] Mr Caskie moved on to look at the conclusions in the September and November Reports which were in the following terms:

September

"Subject has used deception to enter the UK. He has a conviction for failure to surrender thus cannot be relied on to abide by conditions of release. He has a string of offences making him a risk to the public. He has a history of absconding and refused to comply with the ETD process. The subject has a greater risk of absconding and should be detained pending him providing his correct details."

November

"Subject has deliberately lied to immigration and the Gambian HC to frustrate removal. He has a conviction for failure to surrender and has absconded on more than one occasion. He has numerous criminal convictions.

Subject has a greater risk of absconding, no weight can be placed on him abiding by conditions. He is a risk to the public and these risks outweigh the presumption of liberty. Recommendation agreed."

Mr Caskie submitted regarding these conclusions that: even if the court held these decisions were in September and November entirely reasonable as at 863 days in detention, the respondent's position was no longer sustainable.

[26] Mr Caskie then turned to the December Report and highlighted the following therein at page 9:

"We have been notified that the most recent face-to-face interview at the Gambian Embassy was unsuccessful. CROS are going to approach the Embassy to ask for the reasons behind this."

He submitted that the respondent had had the information that the interview had been unsuccessful for a considerable length of time and had done nothing. This breached the fourth Hardial Singh principle.

[27] Thereafter he referred to this further section at page 9:

"We require a travel document to be able to remove the subject. Further inquiries are to be made with the Gambian Embassy to try to ascertain the reasons for the refusal of the most recent face-to-face interview. Once we know this, then further inquiries can be made on how to try to document the subject. Once we have an ETD, removal can be effected immediately."

He submitted that it was implicit in what was said in the foregoing passage that so far as the removal of the petitioner was concerned the respondent was getting absolutely nowhere.

[28] Mr Caskie then turned to the following passage in the said Report at page 8:

"On 19 December 2013, during the course of inquiries relating to the JR, it was discovered that the face-to-face interview conducted on 22 October 2013 was unsuccessful as the Gambian authorities stated they were unable to establish the subject's identity - the further documents provided as proof of nationality were unhelpful. Beverly Jones from the CROS Africa 1 team is going to approach the Gambian Embassy to ask for the reasons behind this. This will be done at the end of January 2014 as the official at the Embassy who deals with these cases is on leave until 30 January 2014. Nadia advised me that a detention review should be done again in light of the notification that the ETD was refused. This should be done prior to the next JR hearing which is set for 10 January 2014."

Mr Caskie submitted that it was clear that in reality nothing was being done by the respondent to move this matter forward. All that the respondent was doing was waiting for an official to come back from leave. He submitted that this was a further breach of the fourth Hardial Singh principle. He also submitted that it was clear from this passage, if it was not already clear from earlier passages in the various reports, that there was no prospect of the petitioner ever being returned to Gambia.

[29] Lastly, Mr Caskie looked at the last page of the said report where the following is said:

"The requirement for an ETD is the only barrier to removal. The most recent face-to-face interview which took place in October 2013 was unsuccessful. However, CROS are going to make further inquiries at the end of January 2014 with the Gambian authorities to try to find out the reasons behind this. This will allow us to decide the next course of action for pursuing the ETD."

He again submitted that the above showed that in reality nothing was being done by the respondent. In addition this paragraph showed that the respondent was back at square one; there was no prospect of removal to Gambia. The respondent was going to have to start investigations afresh relative to the other possible countries to which the petitioner could be removed.

[30] Lastly, under reference to paragraph 19 of the petition, Mr Caskie submitted that Gambia was a country which was generally uncooperative with efforts of the respondent to return persons such as the petitioner and this supported his position that the petitioner was unlikely to be returned.

[31] In summary, Mr Caskie said this: even having regard to his record of offending and absconding and lack of co-operation, the reasonable period had passed and if it had not passed then looking to the position as it had developed, regarding the petitioner's removal and looking at the current position of the respondent, there was no prospect of him being removed within a reasonable period. In either case the petitioner's detention was now unlawful and he should be released.

Reply on behalf of the respondent
[32] Mr McIlvride moved that I should sustain the respondent's first plea-in-law and refuse the petition. He commenced his submissions by accepting that the lawfulness of the petitioner's detention was determined by the Hardial Singh principles. However, he contended that the application of these principles did not result in the petitioner's detention being unlawful.

[33] He submitted that helpful guidance on the application of these principles could be found in three authorities:

[34] First, Nabi v Secretary of State for the Home Department [2013] CSIH 11. He first referred to paragraph 8 thereof where the court observed as follows:

"The contention which Mr Forrest began by putting forward in support of the second ground of appeal upon which he insisted was that the conduct of the reclaimer was irrelevant to a determination of whether the period of the reclaimer's detention was reasonable in all the circumstances. In the course of argument the contention came to be that, by having regard to the conduct of the reclaimer in the detail which is demonstrated by the terms of paragraph 29 of the Lord Ordinary's opinion, the Lord Ordinary is to be taken as having placed too much weight upon a factor which, although relevant, should have been regarded as having only limited importance. Mr Forrest's change in position was forced upon him by consideration of two authorities upon which he relied and the fact that it had been expressly accepted on behalf of the reclaimer before the Lord Ordinary that throughout the relevant period the respondent was entitled to conclude that, if at liberty, there was a significant risk that the reclaimer would abscond and that there was a significant risk of him reoffending. The two authorities referred to by Mr Forrest were R (Lumba) v Secretary of State for the Home Department [2011] 2 WLR 671, a decision of the Supreme Court constituted by a bench of nine justices, and R (on the application of Sino) v Secretary of State for the Home Department [2011] CWHC 2249 (Admin), a decision of a deputy High Court judge (John Howell QC)."

From this Mr McIlvride submitted that the following proposition could be taken: that the petitioner's significant risk of reoffending and significant risk of absconding were factors of considerable materiality when considering whether the petitioner's detention was lawful.

[35] He, in addition, referred to paragraphs 8 and 9 of the said opinion where the court having considered Lord Dyson's observations at paragraphs 123 and 128 in Lumba and the observations of Deputy High Court Judge Howell, QC in Sino at paragraph 50 observed as follows:

"Thus, while warning that it should not be determinative, neither Lord Dyson nor the deputy High Court judge suggested that the conduct of a detainee was an irrelevant consideration. We cannot see how it could be otherwise and, indeed, Mr Forrest appeared to come round to the position that the Lord Ordinary was entitled to have regard to the reclaimer's deliberate failure to co-operate in obtaining the necessary clearance from the Iraqi authorities.

[9] In our opinion, the Lord Ordinary was fully entitled to have regard to the reclaimer's conduct, when addressing the question as to whether the period of detention was reasonable."

From this Mr McIlvride submitted the petitioner's failure to co-operate was a further significant factor in considering the lawfulness of the detention. He did however accept that it was a less weighty factor than the risk of absconding and reoffending.

[36] Secondly, Mr McIlvride drew my attention to the observations of Lord Dyson in Lumba at paragraphs 108 to 110 where he said this:

"108 I acknowledge that the principle that statutory powers should be interpreted in a way which is least restrictive of liberty if that is possible would tend to support the narrower interpretation. But I think that the Court of Appeal was right in A's case to adopt the interpretation which gives effect to the purpose underlying the power to deport and which the power to detain is intended to facilitate. Perhaps a simpler way of reaching the same conclusion is to say, as Simon Brown LJ said in I's case at para 29, that the period which is reasonable will depend on the circumstances of the particular case and the likelihood or otherwise of the detainee reoffending is 'an obviously relevant circumstance'.

109 But the risk of reoffending is a relevant factor even if the appellants are right in saying that it is relevant only when there is also a risk of absconding. As Lord Rodger of Earlsferry JSC pointed out in argument, if a person re-offends there is a risk that he will abscond so as to evade arrest or if he is arrested that he will be prosecuted and receive a custodial sentence. Either way, his re-offending will impede his deportation.

110 The risk of re-offending is, therefore, a relevant factor."

He did, however, concede that, having regard to Lord Dyson's observations at paragraph 123 in Lumba, the likelihood of absconding was not a trump card which would always carry the day for the respondent.

[37] Thirdly, he referred to M v Secretary of State for the Home Department 2012 SLT 386. Counsel directed my attention to paragraphs 25 to 30 of the opinion of the court in that case and submitted that there, in circumstances similar to those in the index case, the court recognised the difficulties that may be faced by the respondent relative to the removal of a person such as the petitioner and that this may require a series of different approaches to be made to the country which is said to be the detainee's national country in order to obtain an ETD, where there is a dispute as to whether the detainee is a national of that country and the detainee is unwilling or unable to provide documentation clearly establishing his nationality. He emphasised that by the time the reclaiming motion was heard in that case, the petitioner had been in detention approaching 32 months and it was held that in the whole circumstances his detention was lawful.

[38] From these authorities, counsel contended that the time which the petitioner had been detained was not unreasonable. Beyond that, it was his position having regard to the whole information before the court that there was a reasonable prospect of his being removed within a reasonable period.

[39] With respect to the period in detention to which I should have regard when considering the lawfulness of the petitioner's detention, it was the primary submission of Mr McIlvride that I should only have regard to what he described as the second period in detention, namely: the period from his arrest on 7 October 2012.

[40] In elaboration of his contention that I should only have regard to the second period, counsel said this: the petitioner was released on bail on 1 June 2012; thereafter he breached his bail conditions and this resulted in his re-arrest on 7 October 2012; these actings amounted to a novus actus interveniens. It was his position that but for his breach of the bail conditions the petitioner would not presently be detained. The petitioner was only subject to the second period of detention because of his failure to comply with the bail conditions. It was reasonable because of his actings to detain him for this second period. Thus the court should only have regard to the second period of detention when considering the lawfulness issue.

[41] Mr McIlvride, however, did accept that even if I were with him in relation to the above contention the appropriate period to have regard to was the second period, in considering the issue of whether it should have become apparent whether removal could be effected within a reasonable period it would be relevant to have regard to what happened during the first period.

[42] Mr McIlvride went on to argue that no matter to what period the court decided it was appropriate to have regard, the petitioner's detention was not unlawful.

[43] Mr McIlvride turned, having outlined the legal background, to make his submissions regarding the facts. His position was that the starting point was the following averment in the petition at paragraph 6:

"The petitioner is a citizen of Gambia".

[44] The second circumstance to which regard should be had to was this: the petitioner had a long history of offending and from this he submitted it was fair to characterise him as being a serial offender and that if released there was accordingly a real risk of reoffending.

[45] Thirdly, there was a considerable history of absconding. If released, he submitted there was a real risk of absconding.

[46] Fourthly, under reference to the Reports of September, November and December of 2013, Mr McIlvride submitted that the respondent had sought diligently to have the petitioner removed and there remained a reasonable likelihood of him being removed. In support of this he highlighted the following sections in these reports:

[47] First in the November review document:

"subjects [sic] custodial sentence ended on 9^th May 2011, and on this date he was moved to immigration detention.

...

On 18^th January 2012, subject was interviewed via telephone by the Gambian High Commission. The consular official refused to give an indication of subjects [sic] nationality at the time, instead saying a report would be sent to CROS.

...

The subject had a telephone interview on 16 May 2012 with the Gambian Consulate. The representative from the Consulate stated he would inform the Documentation Team in Glasgow of the outcome.

...

The subject attended a face-to-face interview at the Gambian High Commission on 5^th February 2013. An officer from the Home Office was in attendance and advised that the subject had been fully compliant and had stated he wanted to go back to Gambia. The case was put on the CROS priority list.

...

On 4^th July 2013 I sent an email to the CROS Africa 1 team to ask for a progress update on the ETD. A reply was received on the 4^th July 2013 to state the ETD was refused. The Gambian HC advised CROS that the face to face interview conducted on 5 February 2013 was unsuccessful - during the interview the subject claimed to be non Gambian and stated that he travelled to the UK from Sierra Leone with his aunt. He also indicated that his father was currently residing in Ghana. A note was placed on CID on 4^th July 2013 stating the Gambian HC refused the ETD as 'the mission cannot confirm whether this passport has ever been issued to the subject as these passports not valid.' On 25^th July 2013 I sent an email to the CROS Africa 1 team, to ask whether the subject presented a passport at the Gambian High Commission. They looked into at and replied on 2 August 2013 advising that the subject did not present a passport and the ETD was refused as his nationality was not proven.

...

The JR hearing took place on 19 September 2013. At the hearing, the motion for interim liberation was dropped by the subject's counsel. At the hearing, the Judge noted that the subject had said at paragraph 6 of his petition that he is a citizen of Gambia. This would mean that he has either lied to the Court of Session or the Gambian authorities (re: the face-to-face interview done on 05/02/13 which the Gambian authorities had advised us had been unsuccessful because during the interview subject claimed to be non Gambian and stated he travelled to the UK from Sierra Leone with his aunt). The judge was of the opinion that this should be drawn to the attention of the Gambian authorities. I obtained a certified copy of the petition that we can forward to the Gambian authorities. A first substantive hearing is due for 25 October 2013.

I have also checked through the subject's sisters [sic] husband's file. The sister has previously said she and the subject share the same father. The subject said at his face to face interview on 05/02/13 that his father lived in Gambia. On the sister's husband's file there is information on the sister's father's name, from her birth certificate and marriage certificate. It appears that his name is Ousman Alieu Ndow and he is a teacher. A copy of the sisters [sic] British passport is on file in which she gives one of her emergency contact's names as Ousman Ndow there is a phone number next to this, although the passport was issued in 2000.

...

The subject has been non-compliant with previous attempts to document him. He attended the Gambian embassy for a face-to-face interview on 22 October 2013, where further information regarding the subject's family was presented to the official at the Embassy. The Gambian authorities are going to carry out checks on the subject. The case has been put on the priority list."

Secondly, in the December Report at page 8 he referred to the following:

"On 19^th December 2013, during the course of inquiries relating to the JR, it was discovered that the face to face interview conducted on 22 October 2013 was unsuccessful as the Gambian authorities stated they were unable to establish the subject's identity - the further documents provided as proof of nationality were unhelpful. Beverly Jones from the CROS Africa 1 team is going to approach the Gambian embassy to ask for the reasons behind this. This will be done at the end of January 2014 as the official at the Embassy who deals with these cases is on leave until 30 January 2014. Nadia advised me that a detention review should be done again in light of the notification that the ETD was refused. This should be done prior to the next JR hearing which is set for 10 January 2014."

Mr McIlvride submitted on the basis of the foregoing passage that the present position was that the respondent would not know until the end of January 2014 (a) why the Gambian authorities believed that the petitioner was not a national of that country and (b) what documents or information would satisfy the Gambian authorities that he was a national of that country.

[48] Having regard to his likelihood of reoffending, his likelihood of absconding and his lack of cooperation, he first submitted that the reasonable period had not been exceeded. Moreover, on the basis of the foregoing, he contended that it was not unreasonable to continue to detain where a further recent application for an ETD had been made and refused but the detailed reasons for the refusal were unknown. It was reasonable to continue to detain until the respondent found out at the end of January what the Gambian authorities' reasons were for the refusal and what documents they did require in order to grant an ETD. It was his position that at this stage there was still a real likelihood of the petitioner being removed within the reasonable period.

Further submissions on behalf of the petitioner
[49] Mr Caskie in relation to the issue of what period of detention the court should have regard when considering the reasonableness of the length of the detention submitted this: the power to detain was to facilitate deportation. Having the petitioner in custody is often an effective mechanism for facilitating removal in that it prevents absconding and enables detainees to be taken to interviews etc. Where detention could only be lawful for the purpose of facilitating removal, the court had to look at the whole period of detention. It would be illogical not to aggregate the two periods and consider the whole period which was said by the respondent to be detention for the purpose of removal.

Discussion
[50] With respect to the preliminary dispute between the parties as to what period I should have regard to when considering the issues raised by the second Hardial Singh principle, I conclude that I should look at the whole period and not merely at the second period as submitted by Mr McIlvride. I recognise that the petitioner's detention since 7 October 2012 is entirely due to his failure to comply with the conditions attached to the bail order. However, given what is said in the first Hardial Singh principle, I believe regard must be had to the whole period. It is the entire period that the petitioner is being detained for the purpose of deportation not just the second period. Thus, in particular, when the second Hardial Singh principle is turned to, it is to the whole period of detention for the purpose of deportation that the court must have regard to when considering the reasonableness of the period of detention.

[51] The petitioner's actings in failing to comply with the conditions attached to his bail order do not mean that his first period in detention ceases to be a period in which he was being held for the purposes of deportation. In that sense, his failure to comply with these conditions, in my view, is not truly a novus actus interveniens as submitted on behalf of the respondent.

[52] For the above reasons I prefer the argument advanced on behalf of the petitioner and when considering the second and third Hardial Singh principles I will have regard to the whole period in detention.

[53] Having considered the preliminary point raised by the respondent, the next issue for the court is this: does the period for which the petitioner has been detained exceed such period as is reasonable in the circumstances?

[54] Included in the circumstances the court can properly have regard to are:

(a) The likelihood of the petitioner absconding if released.

(b) The likelihood of the petitioner offending if released.

(c) Whether the petitioner has co-operated with efforts to have him removed.

I believe from the information before me there is a very significant risk of his absconding. In reaching that conclusion, I have had regard to the petitioner's immigration history and his history of absconding, in particular his behaviour on being granted bail on 1 June 2012 which was to immediately fail to comply with the signing on conditions attached to the bail order. I believe, having regard to these factors, that I am entitled to attach material weight to this consideration.

[55] In addition, I believe having regard to the information before me that there is a significant risk of his reoffending and of his reoffending being of a serious nature with a risk to the general public.

[56] Of particular note is that in a period of about 8 years the petitioner has been convicted on no less than nine occasions. On two of those occasions he has received material jail sentences. It seems to me I am entitled to attach material weight to this factor.

[57] His immigration record, his record of absconding and his record of offending are, in my view, clear evidence that he is someone who has no regard for the law of the United Kingdom and of orders made by the courts and other authorities.

[58] Beyond the foregoing, it appears to me that the petitioner has not co-operated in obtaining the ETD. He has a history of non-cooperation with the authorities. He has given a number of different dates for his arrival in the United Kingdom including when he said he arrived with his aunt (see: page 4 of the December Report). On 23 October 2003 he claimed his nationality to be Sierra Leonean. He has claimed that his name was James Carter (see: page 4 of the December Report). He has stated that he held dual-nationality between Gambia and Trinidad and Tobago. He has said he used Sierra Leonean nationality when he first entered this country (see: page 4 of the December Report.) In his petition, he states he is Gambian. On 19 January 2011 following an interview with the Gambian High Commission, the Gambian authorities confirmed that he was a Gambian national. However, following an interview on 5 February 2013 the Gambian authorities advised the respondent that the application for an ETD had been unsuccessful as the petitioner had claimed to be non-Gambian and had stated that he had travelled to the United Kingdom from Sierra Leone with his aunt. The petitioner denied that he had given this information when interviewed.

[59] An affidavit was obtained from the official of the Home Office who attended with the petitioner at the Gambian High Commission on that occasion, however, she could not state what was said by the petitioner as he and the Consular Official had spoken in a language which she did not understand. Therefore, the position is that the only information before me as to what passed at the interview is that supplied by the Gambian High Commission and the petitioner's statement as to what happened given through his counsel.

[60] I have concluded that the Gambian High Commission's version of events is to be preferred. What the High Commission says happened fits in with certain of the statements which the petitioner has previously made as to his nationality which I have set out above. It also fits in with his previous actings, which can be summarised as showing a willingness to do anything to avoid having to leave this country. I accordingly hold, having regard to all the information before me, that the petitioner has not co-operated with the efforts to return him to Gambia.

[61] The fourth consideration to which the court must have regard in considering the reasonableness of the period for which the petitioner has been held is this: has the respondent in dealing with the petitioner shown reasonable expedition and diligence in seeking to effect his removal?

[62] Mr Caskie submitted that in the period between the first and second reviews, no action had been taken to forward the case. However, it appears to me that steps had been taken: the petitioner was taken to the Gambian Embassy for a further face-to-face interview on 22 October 2013. At that time, additionally, certain information which had been obtained by the respondent regarding the petitioner's family, together with his admission in the petition that his nationality was Gambian, was presented to the Gambian High Commission in order to support the application for an ETD. Accordingly, I do not believe that the criticism made by Mr Caskie has any substance.

[63] Secondly, Mr Caskie submitted that the failure to have a member of the Home Office staff who spoke the Gambian dialect used in the face-to-face interview on 5 February 2013 showed a lack of such diligence. Such a criticism is, I believe, placing far too high a duty on the respondent. It seems to me that the respondent cannot possibly be expected in the exercise of a duty of reasonable diligence and expedition to provide an official at all such interviews who speaks the language of the petitioner's claimed homeland. In any event, even if the Home Office officer had been able to speak that language, it would not have advanced the petitioner's return to Gambia. It would not have prevented the petitioner acting in the manner set out above.

[64] Thirdly, Mr Caskie criticised the respondent's failure to do anything by the time of the December review following the failure of the face-to-face interview in October 2013.

[65] I believe there is nothing in this criticism. The respondents were waiting for reasons for the failure of the October interview from the Gambian High Commission. The official who could give this information is on holiday until the end of January 2014. It appears to me that until the respondent is aware of the reasons for the failure there is nothing that she can reasonably do to advance the petitioner's removal. She requires to know the reasons for the refusal before she can make a proper decision as to what her next step should be. Without that information, any decision which she took as to how she should proceed would not be soundly based.

[66] I do not think that any proper criticism can be levelled at the respondent for waiting for the return of the official. It is not within the power of the respondent to obtain the information at any earlier stage. This official is not present and until his return the respondent cannot obtain this information. I do not see how this information could have been obtained any more quickly. It does not seem to me to be unreasonable in the first instance to await the return of this official. Thereafter, if the reasons were not forthcoming as to why the respondent's application for an ETD had been refused then there would be a duty on the respondent to make such attempts as are possible to speed up the obtaining of that information from the Gambian High Commission. Clearly the respondent cannot put forward, and nor did she seek to put forward, that she could simply wait forever for this information to become available and in the meantime detain the petitioner.

[67] In my judgment, there is nothing in the criticisms of the respondent made by Mr Caskie, either singly or when taken together, which amount to lack of reasonable diligence and expedition on the part of the respondent.

[68] It appears to me that, looking to the information before me, the respondent has acted with due expedition and diligence throughout the entire period that the respondent has been in detention when seeking to move forward the petitioners return to Gambia. She has at all times, in the context of a very difficult background as set out above, done her best to effect deportation. It is difficult to see what else she could have done other than what she has in fact done.

[69] It seems to me that when one takes together these factors: the very real likelihood of the petitioner absconding; the very real likelihood of his reoffending; his failure to co-operate and the reasonable expedition and diligence which the respondent has shown throughout the period of the petitioner's detention and weighs these against the right to liberty, the period which the petitioner has been held in detention, although lengthy as at the date of the continued first hearing, remains reasonable and therefore lawful.

[70] I accordingly answer the question which I posed at the outset of this section of my opinion in the negative.

[71] The second question is this: given that the reasonable period has not yet expired, is it apparent that the respondent will not be able to effect removal within what would be a reasonable period?

[72] The petitioner had, at the date of the continued first hearing, been in detention for 863 days. This, on any view, is a very lengthy period in detention. Even taking into account the various considerations to which I have had regard when answering the first question, it appears to me that the expiry of the reasonable period cannot be said to be far over the horizon.

[73] The difficulties which the respondent is facing in obtaining an ETD to remove the petitioner to Gambia are, on the whole information before me, not insubstantial. The respondent, despite making a number of efforts and presenting various information throughout this lengthy period, has been unable to persuade the Gambian High Commission that the petitioner is Gambian.

[74] Nevertheless, I do not conclude that the respondent will not be able to remove the petitioner within a reasonable time. The respondent presently does not know why the Gambian High Commission refused the ETD following the recent interview and presentation of further information. The respondent does not know whether any further information which could be obtained would satisfy the Gambian High Commission as to the petitioner's nationality. Until the foregoing is known and until the respondent has had a chance to consider how she might proceed in seeking to deport the petitioner, in light of that information I do not consider that it is appropriate to conclude that the respondent will not be able to deport within a reasonable period. I accordingly answer the second question in the negative. Lastly, with respect to the issue of general Gambian non-cooperation with the respondent's efforts to return persons to Gambia, I am not satisfied that in this case there has been any such non-cooperation. Rather, it appears to me, for the reasons I have set out, that the difficulties in returning the petitioner to Gambia lie principally at the door of the petitioner.

Disposal
[75] It was discussed at the continued first hearing how I should dispose of the case. Parties were agreed given the imminence of the respondent being advised by the Gambian High Commission as to the reasons for their refusal of the ETD that, if I were not finding in favour of the petitioner, I should put the matter out by order so that I could be advised as to the reply of the Gambian High Commission and as to what the respondent intended to do in light of that reply.

[76] It appears to me that this is a sensible way to proceed. I am of the view that, in considering at that point (the date of the by order) the question of whether the petitioner can be removed within a reasonable period, the terms of the Gambian High Commission's reply and the decision of the respondent as to what further steps could be taken in order to effect the removal of the petitioner would be of critical importance. I note that in very similar circumstances this course was one which found favour with the Inner House when dealing with the case of M v Secretary of State for the Home Department. For these reasons I have accordingly decided to have the matter put out by order to hear further submissions in light of the said response.